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Office of Special Counsel (OSC) Guidance on I-9 Self-Audits

Employers as a best practice should conduct regular self-audits of their I-9s to ensure the forms are completed properly. When, if ever, can an employer, during a self-audit, request to see the documents that were presented by the employee at the time the I-9 was initially completed?  The U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA). The OSC, in response to a question by the American Immigration Lawyers Association (AILA), recently provided some clarification on this point.

OSC stated that if an employer, during an I-9 self-audit, discovers (1) information is missing in Section 2 of the Form I-9, (2) the employer retained copies of the Section 2 supporting document(s), and (3) the document(s) presented is blurry, then it is acceptable for the employer to ask the employee for originally presented documents. This guidance can be compared and contrasted with earlier OSC guidance as to whether an employer, in a self-audit, has the right to request documents previously shown at the time of Section 2 I-9 verification solely because the copies of the supporting documents are unclear or blurry. On that point OSC stated that a blurry copy alone is not enough for the employer to request originally presented documents. Based on the above, full completion of Section 2 of the Form I-9 appears to be the distinguishing factor.

This guidance also implies that, if Section 2 is completed, an employer cannot request an employee provide supporting documents if copies were lost or never made in the first place. If an employer cannot request to review a supporting document when a blurry copy has been retained and Section 2 of the I-9 is fully completed, then the employer with a fully completed I-9 Section 2 likely cannot request to review a supporting document if the copy is nonexistent.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume IV, Number 275



About this Author

Scott Decker, Greenberg Traurig Law Firm, Atlanta, Immigration and Technology Law Attorney
Of Counsel

Scott T. Decker focuses his practice on immigration-related employment law, counseling national and international employers on compliance, immigration policy and strategy. He regularly conducts audits to assess I-9 compliance and represents employers before the U.S. Department of Labor and the U.S. Citizenship and Immigration Services.

Professional & Community Involvement

  • Member, American Immigration Lawyers Association


  • Legal Intern,...